Docket: IMM-6439-10
Citation: 2011 FC 830
Montréal, Quebec, July 6, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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FERNANDO WARNAKULASOORIY
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
Overview
[1]
To
examine core evidence in a case, piecemeal, each part out of context, not as
part of an entirety, is as if a decision-maker examined a forest by looking at
each tree and omitted to see the forest as a whole, thus missing the big
picture. Where uncontradicted evidence, declared credible, is shredded,
piecemeal, said evidence lacks understanding.
[2]
It
is no different than dissecting a narrative, considered credible, to such a
degree that it loses its overall cohesiveness and no part separately then
resembles its origin as part of the whole. All of which leads to unreasonable
conclusions.
[3]
Lai
v Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 826
(C.A.)(QL) clearly states that when assessing the objective aspect of a
claimant’s fear, the Board must consider all the evidence it finds credible to
ensure that a valid analysis will have been undertaken.
Introduction
[4]
The
Applicant is a 55-year-old citizen of Sri Lanka.
[5]
The
Applicant arrived in Canada on February 28, 2009
and claimed refugee status on March 12, 2009.
[6]
The
Claim of the Applicant was heard by the Immigration and Refugee Board in Montreal [hereinafter the Board]
on August 18, 2010. A negative decision was eventually rendered on September 21st,
2010. Hence, the present Application for Judicial Review.
Background
[7]
The
Applicant was active in politics in Chilaw from 1983 until he left Sri Lanka in February
2009.
[8]
First running
for Council as an independent candidate in 1983, the applicant became
the first inhabitant of the division to be appointed to Council.
[9]
In
1985, the Applicant joined the UNP.
[10]
In
1991, the Applicant was again elected to Council as a UNP member.
[11]
In
1992, he was the Council Representative in a dispute between local
fishermen. When the courts found in favour of the sea beach fishermen, he was
attacked in Chilaw with a sword. His right hand was badly cut, and this
resulted in permanent damage to four of his fingers.
[12]
In
1994, as soon as the Sri Lankan Freedom Party United Front came
into power, its supporters, together with the group that previously attacked
the Applicant in 1992, filed 11 false cases against the Applicant. In the end,
he was acquitted.
[13]
In
1997, the Applicant was elected Deputy Mayor in the Chilaw Urban
Council. This
Council was the only administrative body in the district that was won by the
UNP in local elections.
[14]
On
December 5, 1997, shortly after these elections, the Applicant was
arrested by the police on false allegations. The case was made public and
appeared on the television news and in the papers. The Applicant remained in
detention for 42 days and was then released on bail.
[15]
In
the 2002 elections, the Applicant was re-elected to the position of
Deputy Mayor to the Chilaw Urban Council.
[16]
In
December 2003, a group of Catholics were arrested by the navy when they
were discovered on a vessel travelling to Italy, illegally.
In January 2004, the Applicant was arrested on the accusation that he
had helped certain members of this group. The Applicant was detained for 100
days. He was finally released on bail and on condition of reporting once a month
to the CID office in Colombo. After four years, the
Applicant was acquitted.
[17]
In
the April 2006 elections, the UNP lost but the Applicant still won in
his position as Leader of the Opposition Group to the Council.
[18]
In
January 2007, 18 opposition members of Parliament from the UNP left the
party and crossed over to the ruling party of PA. One of them was Neomal Perera
who was appointed to the position of Deputy Minister of Fisheries.
[19]
On
March 5, 2008, Perera forcibly appointed the Applicant as his advisor
although the Applicant maintained his affiliation with the UNP. As a result,
the Applicant found himself in a difficult position – on the one hand, his own
party suspected him of being a traitor, on the other hand, the Sri Lankan
Freedom Alliance party members did not trust him.
[20]
The
Applicant began receiving anonymous calls to his home threatening him not to
continue in politics. His wife was also threatened and told to leave the
village. The Applicant was afraid to go fishing and the whole family was under
duress.
[21]
On
February 8, 2009 the Applicant was present during a political rally. In
the midst of the rally, Perera publicly offered him the position of Mayor of
the town in the next North Western Provincial Council elections which were to
take place on February 14, 2009, if the Applicant would join him on the
government side.
[22]
On
the night before the elections, unknown men came to the Applicant’s house,
fired two shots and threatened that if he worked on election day, he would be
killed.
[23]
The
Applicant obtained a Canadian visa to attend a conference in February of 2009.
He arrived in Montreal on February 28, 2009
and filed a claim for refugee protection on March 12, 2009.
[24]
In
2010 and while in Canada, the Applicant called Perera in Sri Lanka. Perera,
once again, asked him to join him if he had planned to return. The Applicant
believes that his absence has been a major setback for Perera who has dropped
in rank/popularity. Perera became angry with the Applicant when told that the Applicant
had claimed refugee status, and then, hung up on him. The Applicant believes
that Perera was angry at him because the latter is aware of confidential
information that the Applicant might relate to Canadian authorities.
[25]
The
following exhibits were included in support of the present Application:
a.
Exhibit P-1: The
Applicant’s Personal Information Form;
b.
Exhibit P-2: The
exhibits produced by the Applicant before the Board;
c.
Exhibit P-3: The
2009 US Department of State Report which forms part of the package submitted by
the Applicant.
[26]
The
compilation in this case is specified in that most of the allegations of the
Applicant are supported by uncontradicted comprehensive evidence.
Decision rendered by the
Board
[27]
The
tribunal found the Applicant to be credible. The tribunal noted that his
testimony was “clear, detailed, honest and spontaneous” (par. 8 of the
decision).
[28]
Nonetheless,
the tribunal found that the Applicant does not have a well-founded fear of
persecution should he return to Sri Lanka (par. 9 of the decision).
[29]
When
it comes to the Applicant’s fear of unknown persons from the opposition party,
the tribunal found that there was no evidence in the general documentation to
support his claim that members of the opposition, PA, were actively
persecuting members of the UNP (par. 13 of the decision).
[30]
Moreover,
the tribunal found that the applicant could obtain state protection if he was to
be threatened in the future by unknown thugs (pars 22-27).
[31]
The
Applicant also did submit an article detailing the murder of a municipal
opposition leader who was killed by unknown persons. The Applicant explained
that he knew the individual who was an opposition leader like himself and that
he feared that the same fate could befall him. Nevertheless, the tribunal found
that the article does not provide a motive for the killing and concludes that
one article does not support the applicant’s fear that he will suffer the same
fate (par. 14 of the decision).
[32]
The
tribunal also dismissed another article also submitted by the applicant which
reported the release of five UNP members after an attack on a fellow UNP
member. The tribunal found this to be an intra-party incident without details
regarding the original situation (par. 15 of the decision).
[33]
The
tribunal also dismissed another report because it found that it did not stand
for the proposition that the police are subject to the whim of the politicians
as alleged by the applicant. Instead, the tribunal found such protection is
limited to members of parliament (pars 16-17 of the decision).
[34]
The
Applicant testified that he spoke to Perera in May of 2010. During this
conversation, Perera again asked the applicant to join him and was angry when
he came to know that the applicant had claimed refugee status in Canada. The tribunal found that
Perera made no threats against the applicant and that there were no reasons to
believe that he would be persecuted because of “secrets” of which the Applicant
might be aware (par. 18 of the decision).
[35]
The
tribunal finds that although the applicant has a subjective fear, there is
insufficient objective evidence to support his fear of persecution by Perera.
[36]
The
tribunal also dismissed the applicant’s fear of the navy because of previous
charges against him which had been dropped (par. 20 of the decision).
[37]
In
light of the above, the tribunal found that the applicant is not a person in
need of protection under section 97 of the Act (pars 28-30 of the decision).
Analysis
[38]
The
Court agrees with the position of the applicant and finds the tribunal has
erred by not evaluating the cumulative effect of what the Applicant has
experienced in addition to the specific events that led to his decision to
claim refugee status. This is an error of analysis as the tribunal was
satisfied with the Applicant’s credibility.
[39]
The
uncontradicted narrative must be recalled.
[40]
In
1992, he was the Council Representative in a dispute between local fishermen. When
the courts found in favour of the sea beach fishermen, he was attacked in
Chilaw with a sword. His right hand was badly cut, and this resulted in
permanent damage to four of his fingers.
[41]
In
1994, as soon as the Sri Lankan Freedom Party United Front came into
power, its supporters, together with the group that previously attacked the
Applicant in 1992, filed 11 false cases against the Applicant. In the end, he
was acquitted.
[42]
On
December 5, 1997, shortly after the elections in the same year, the Applicant
was arrested by the police on false allegations. The case was made public and
appeared on the television news and in the papers. The Applicant remained in
detention for 42 days and was then released on bail.
[43]
In
December 2003, a group of Catholics were arrested by the navy which discovered
that they were on a vessel travelling to Italy illegally. In
January 2004, the Applicant was arrested on the accusation that he had assisted
members of the group. The Applicant was then detained for 100 days and released
on bail and on condition of reporting once a month at the CID office in Colombo. After four
years, the Applicant was acquitted.
[44]
After
Perera appointed the Applicant as his advisor on March 5, 2008, the Applicant
began receiving anonymous threatening calls.
[45]
On
February 13, 2009, one day before the elections, at night, some thugs came to
the Applicant’s house, fired two shots and threatened him that if he worked on
election day, he would be killed.
[46]
In
light of the above, the tribunal had an obligation to consider the cumulative
effects of all the acts of alleged persecution that the Applicant has faced
during his political career. The failure to do so amounts to an error in law,
the whole in accordance with Retnem v. Canada (Minister of
Employment & Immigration) [1991] 13 IMM. L.R. (2d) FCA.
[47]
The
tribunal has committed a further error by considering each element of the
Applicant’s claim separately and not in combination with others so as to
conceive of the Applicant’s narrative as a whole.
[48]
The
tribunal finds that the Applicant would be able to obtain state protection
against the threats by the unknown persons (pars 22-27 of the decision); however,
the tribunal also acknowledges documentation which states that the degree of
protection afforded to MPs is subject to “the whim of the government” (at
par. 16 of the decision). The Applicant is clearly not in good terms with the
ruling party and has refused their attempts to recruit him. In this situation,
he has good reason to question whether he would be able to obtain state
protection in the future against further threats.
[49]
Actually,
the Applicant has no way of knowing whether “unknown thugs” making threats
against him and firing shots outside his house are not in fact connected to the
authorities; the government has been linked to paramilitary groups which are
believed to be responsible for human rights abuses. [For example, please see
Introductory section of 2009 US Department of State report, submitted herein as
Exhibit P-3].
[50]
As
already stated, the Board found that the Applicant could obtain state
protection against the threats by unknown persons. The tribunal wrote that Sri Lanka is a
functioning democracy with two major elections held in 2010. In May 2009,
government forces defeated the LTTE after more than 25 years of conflict. The
tribunal found that the situation is not perfect but that human rights
violations pertain primarily to events which led to and followed the defeat of
the LTTE (par. 25 of the decision).
[51]
Essential
to this case is the evidence at the time in question. The 2009 US Department of
State report has been submitted herein as Exhibit P-3; and, it contains numerous
significant grave examples of human rights abuses committed after May 2009.
[52]
Annual
reports for 2010, at the time of the hearing, were not yet available and there
is therefore no actual documentary basis for finding that there had been
significant changes in country conditions. Improvements would have occurred
following the end of the war, however, that does not in itself mean that the security
forces and judiciary system in Sri Lanka were, or are able, to
protect the Applicant based on his specific uncontradicted evidence.
[53]
Moreover,
although the tribunal had conducted a very meticulous separate analysis of each
element raised by the Applicant, the tribunal has not actually paused to
consider the consequences (as a whole) of the Applicant’s refusal to join
Perera’s side after the latter had made considerable efforts to recruit him and
have him cross the floor from the UNP side.
Conclusion
[54]
In
light of the above, as the decision demonstrates a lack of reasonableness, the
present Application for Judicial Review is granted.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the judicial review be granted. Therefore, the file is to be
returned to the Board to be redetermined anew by a newly constituted panel. No
question for certification.
“Michel M.J. Shore”
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